Clean Air Council v. Pruitt

Case Documents:

D.C. Circuit Denied Intervenors’ Requests for Rehearing of Decision Vacating Stay of Methane Rule for Oil and Gas Facilities. The D.C. Circuit Court of Appeals denied petitions for rehearing en banc of its decision vacating the U.S. Environmental Protection Agency’s (EPA’s) administrative stay of methane standards for oil and gas sector. The petitions were filed by intervenor-respondents, not by EPA. The order denying rehearing indicated that Judges Henderson, Brown, and Kavanaugh would have granted the petitions.

D.C. Circuit Said Administrative Stay of EPA Methane Standards for Oil and Gas Facilities Must Be Vacated Immediately. On July 31, 2017, the D.C. Circuit Court of Appeals ordered immediate issuance of the mandate vacating the U.S. Environmental Protection Agency’s (EPA’s) administrative stay of portions of methane standards for oil and gas facilities. Earlier in July, the court held that the Clean Air Act did not authorize the stay and granted environmental groups’ emergency motion to vacate the stay. The July 31 order followed a July 13 order partially granting EPA’s motion to recall the mandate. The court issued the July 31 order on its own motion after receiving petitions for rehearing en banc from two sets of intervenors (11 states and oil and gas trade groups) but not from EPA itself. Two judges—Judge Brown and Judge Brett M. Kavanaugh—would not have issued the mandate. Briefing on the rehearing petitions was completed on August 3, 2017.

On July 13, 2017, the D.C. Circuit issued an order partially granting EPA's motion to recall the mandate. The court recalled the mandate only for 14 days, stating that “[t]o stay issuance of the mandate for longer would hand the agency, in all practical effect, the very delay in implementation” that the court had determined was arbitrary, capricious, and in excess of EPA’s authority. (Judge Janice Rogers Brown, in dissent, would have recalled the mandate and applied the court’s normal timing rules rather than “a truncated time-frame which shortchanges all sides.”)

D.C. Circuit Vacated EPA’s Administrative Stay of Methane Standards for Oil and Gas Facilities. A divided D.C. Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency (EPA) lacked authority to administratively stay portions of new source performance standards for the oil and gas sector for which it had granted requests for reconsideration. The stayed aspects of the standards related to fugitive emissions requirements, alternative means of compliance, standards for pneumatic pumps at well sites, and requirements for certification by a professional engineer. The D.C. Circuit concluded that the administrative stay constituted reviewable final agency action because it was consummation of EPA’s decision-making process with respect to the standards’ effective date even though EPA’s underlying decision to reconsider portions of the standards would not by itself be subject to review. The D.C. Circuit also rejected EPA’s argument that the court did not have authority to review stays issued under Section 307(d)(7)(D) of the Clean Air Act. The court said the statutory language authorized courts to grant stays and that EPA’s reading of the statute “would have the perverse result of empowering this court to act when the agency denies a stay but not when it chooses to grant one.” The D.C. Circuit further concluded that Section 307(d)(7)(B) expressly linked EPA’s power to stay to regulatory provisions meeting the requirements for “mandatory reconsideration”—that it was “impracticable to raise” an objection during the public comment period and that the objection was “of central relevance to the outcome of the rule.” The D.C. Circuit concluded that EPA had acted arbitrarily and capriciously in determining that the four elements of the regulations that had been stayed met these requirements. The court said the administrative record “makes clear that industry groups had ample opportunity to comment on all four issues on which EPA granted reconsideration.” The court therefore found that the stay was unauthorized and vacated it. (The D.C. Circuit also rejected EPA’s argument that it had inherent authority outside of Section 307(d)(7)(B) to issue the stay.) The court emphasized, however, that even though EPA did not have an obligation to reconsider the four provisions, “nothing in this opinion in any way limits EPA’s authority to reconsider the final rule … as long as ‘the new policy is permissible under the statute … , there are good reasons for it, and … the agency believes it to be better.’ ” Judge Brown wrote a dissenting opinion, indicating that she believed the stay did not constitute final agency action because it did not represent “consummation of the agency’s decision-making process” and because it did not “impose legal or practical requirements on anyone,” noting that EPA was not compelling compliance and that “[i]f a regulated entity wants to comport its conduct to the requirements of the stayed rule, it is free to do so.” (The majority responded to this latter point by saying that “[t]he dissent’s view is akin to saying that incurring a debt has legal consequences, but forgiving one does not. A debtor would beg to differ.”)

Motion for leave to intervene in support of petitioners filed by Colorado.

Colorado separately sought leave to intervene in support of the petitioners, noting that it had already undertaken significant steps to control ozone-forming pollutants and methane from oil and gas sources and also contending that the stay would “concretely and negatively” affect Colorado’s interests in, among other things, protecting its citizens from air pollution and climate change.

Thirteen states, the District of Columbia, and the City of Chicago sought leave to intervene on behalf of the petitioners. These potential intervenors alleged that the additional emissions during the stay period would harm their interest in protecting their residents from the effects of air pollution and climate change.

Motion for leave to intervene in support of respondents filed by states.

Eleven states or state agencies or officials sought to intervene on EPA’s behalf, as did oil and gas trade groups and a number of independent oil and gas producers, who argued that the stay did not constitute reviewable final agency action.

Six environmental groups filed a petition for review and emergency motion for stay challenging the U.S. Environmental Protection Agency's (EPA's) administrative stay of portions of the new source performance standards for source in the oil and gas sectors. EPA published notice of the stay in the June 5, 2017 issue of the Federal Register. The environmental groups argued that EPA’s reconsideration of those aspects of the standards was not valid and and that the administrative stay was therefore unlawful. EPA argued in response that the petitioners were making an inappropriate collateral attack against EPA’s determination to stay parts of the rule, and that the petitioners had an inaccurate and narrow view of the scope of EPA’s authority (but that EPA nevertheless had acted within even such narrowly construed authority). EPA also argued that the petitioners had not shown irreparable harm because the stay would result in only a small incremental increase in emissions (“just 0.046% of the annual methane emissions from the oil and gas industry”).

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